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2023 DIGILAW 461 (UTT)

Satendra Kumar v. State of Uttarakhand

2023-08-10

SHARAD KUMAR SHARMA

body2023
JUDGMENT : For the purposes to meet out the gravamen of arguments as it has been extended by the learned counsel for the applicant, and the judgments, which he has relied upon, to oust the engagement of the present applicant from commission of offence under Sections 3, 4, 5, 6, and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter to be called as “the Act of 1956”), and for the offence under Section 370 of IPC, as it was registered against him, by way of an FIR No. 143 of 2023 on 13.03.2023, before Police Station, Kashipur, District Udham Singh Nagar, which consequently upon the culmination of investigation had resulted into submission of the Chargesheet, being Chargesheet No. 228 of 2023 dated 10.05.2023, on account of which, the present applicant has been summoned to be tried by the Court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar in a Criminal Case No. 1191 of 2023, State Vs. Deep Mala and others. 2. In order to summarize the arguments, as it has been extended by the learned counsel for the applicant:- First contention is that, as far as the provisions as contained under Sections 3, 4, 5, 6, 7 of the Act of 1956 are concerned, a customer who is even apparently engaged in augmenting an act of prostitution, will not be covered by it. Secondly, he submits that in the light of the provisions as contained under sub Section (3) of Section 7 of the Act, with regard to conduct of an activity, would be depending upon the area, upon being notified in the official Gazette, until and unless the said area has been specified to be notified, where no prostitution could be under law conducted, no offence under Sections 3, 4, 5, 6 of the Act, could be made out as against the present applicant. Thirdly, he submits, that even if the language of Section 370 of IPC is taken into consideration, where it prohibits the trafficking of a person, since it classifies the activities contained therein i.e. exploitation, recruits, transports, harbors, transfers or “e-receives a person or persons”. Fourthly, he submits, that none of the elements prescribed in the aforesaid classifications, as provided under Section 370 of IPC, would be made out as against the present applicant, for the purposes to be tried for the offences as narrated above. 3. Fourthly, he submits, that none of the elements prescribed in the aforesaid classifications, as provided under Section 370 of IPC, would be made out as against the present applicant, for the purposes to be tried for the offences as narrated above. 3. Before dealing with the respective contentions as raised by the learned counsel for the applicant, the basic social objective of the Act of 1956, becomes inevitable to be considered by this Court as to what was the actual legislative reason, which necessitated the legislature to promulgate the Act of 1956, for the purposes of regulating the conditions, under which the prohibition is to be imposed upon an act of prostitution and for the said purpose, before referring to the statement, object and reason, which basically aimed at to inhibit and/or abolish commercialized acts of prostitution in trafficking of persons, for the purposes of prostitution as in an organized means of living. 5. The basic object of the Act, which it intends to meet out the aforesaid objective, has been culled out by its provisions contained under Sections 7 & 8 of the Act. A prostitution, in or in the vicinity of certain public places or in places of religious worships, educational institutions or hospitals, have had to be strictly prohibited and for that purpose, the implications of Section 7(3) of the Act, has been attempted to be argued by the learned counsel for the applicant that since there was no Gazette notification with regard to the area or place where the offence was committed, since being excluded from permitting to carry out the activities of prostitution, no offence as against the applicant for the offence under Sections 3, 4, 5, 6 & 7 of the Act, would be made out. 6. In all canons of law, the terminology of ‘specific Act’ will always have to be put within the framework of the constitutional mandate, as to what was its basic objective to be promulgated. 6. In all canons of law, the terminology of ‘specific Act’ will always have to be put within the framework of the constitutional mandate, as to what was its basic objective to be promulgated. The necessity to formulate the Act of 1956 was felt necessary by the legislature, because the act of prostitution which had been one of the oldest known business, ever since the creation of civilization, and for the said purpose, imposing restrictions upon the same was imminent, which otherwise would have resulted into aiding and abetting the commission of offences, as provided under the Act, the legislature and the executive were required to plan out a framework of restriction in the conduct of an act of prostitution. 7. The aforesaid objective could be attributed to had its birth from the provisions as contained under Article 23 of the Constitution of India, where traffic in human being was prohibited wherever it was in contravention to the provisions of law and hence the offence was made punishable in accordance with law and that is why, while exercising its powers under Article 35 of Constitution of India, the Act of 1956, was promulgated and the basic object of it was the ‘suppression of immoral traffic in women and girl’ to Immoral Traffic (Prevention) Act of 1956. The word ‘women and girls’ as it was initially used in the Act was subsequently amended by the use of word ‘persons’ and the ‘persons’ herein, would mean prohibition of an act of prostitution either by a male and female both. 8. The issue, in the context of which it has been argued by the learned counsel for the applicant, is that even if the said amendment, where the word ‘girl and female’ has been excluded, by substituting the same with the word ‘person’, according to the arguments as extended by the learned counsel for the applicant, the ‘person’ herein would denote to either a male or a female who are engaged in the business of prostitution, but it will not include within it a person, who is a customer or to these such male or female who for the purposes of prostitution are the customers only. 9. 9. What he attempts to argue is that under either of the circumstances, if the principal object of the Act is taken into consideration, the ‘customer’ would be excluded from the purview of the Act, and the allegation which has been leveled in the instant FIR, according to him, so far, it relates to the offences under Sections 3, 4, 5, 6, 7 & 8 of the Act of 1956 would not be made out against the applicant, who has been taken to be the customer only. 10. The learned counsel for the applicant, secondly while referring to sub Section (3) of Section 7 of the Act, which is extracted hereunder, contended that since the place, where the offence was found to have been committed, was not falling as to be a notified area under an official Gazette, as contemplated under sub Section (3) of Section 7 of the Act and in the absence of there being a Gazette notification, commission of an offence, in an area, which was not being notified, for the purposes of creating a restriction for continuance of an act of prostitution, the applicant will not be said to be involved in commission of offence until and unless, it is the prosecution case that the place where the offence was committed, was a notified area under sub Section (3) of Section 7 of the Act. Sub Section (3) of Section 7 of the Act of 1956 is extracted hereunder: “7(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification.” 11. In support of this contention, the learned counsel for the applicant has relied upon several judgments, which are being dealt with hereunder. But, what is more important to be observed is that this limb of arguments as extended by the learned counsel for the applicant, is beyond the scope of the pleadings, which has been raised by the applicant, for the purposes of putting a challenge to the summoning order and the Chargesheet, as to what impact would it have, pertaining to the effect of notification of notifying an area, where a prostitution has to be prohibited. 12. 12. It would be absolutely too preposterous to interpret that, that if an area is not notified for the purposes of prohibition of prostitution, reasonably, and as per the objective of the said Act, it may not be inferred in a negative perspective, that the prostitution could be permitted in an area, which is not notified as restricted area under sub Section (3) of Section 7 of the Act. Because, if that be the interpretation about the effect of Gazette notification of prohibiting a zone from an act of prostitution, will in itself, be in contravention to the SOR of the Act, where the act of prohibition has been contemplated to be banned as being a social menace, which has been persisting ever since the creation of humanity. 13. As far as the facts of the instant case are concerned, according to the said FIR, when the police party had raided the premises, upon anticipating of carrying of an act of prostitution; upon the raid being conducted when the police team visited the place in question, in fact, it was the applicant only, who had opened the door. Meaning thereby, he was an inmate of the place, where the act of prostitution was being carried. 14. Meaning thereby, he was an inmate of the place, where the act of prostitution was being carried. 14. Not even that, if the prima facie allegations which have been leveled in the FIR are taken into consideration, it was observed, that the room from where the applicant was arrested or could be said to have been found to be indulged in an act of prostitution, following were the situations, which were found by the police officials, which are extracted hereunder:- ^^uXu yMdks o yMdh dks muds diM+s iguok;s x;s rRi'pkr lHkh ls ckjh ckjh uke irk iwNk x;k rks loZizFke efgyk ds }kjk viuk uke nhiekyk ;kno iRuh jkeeuksjFk ;kno fuoklh Ckh 112 xyh uEcj 24 egkohj bUkDyso ikVZ 02 mŸkeuxj] if'pe fnYyh gky fuoklh eqds'k ds edku esa fdjk;snkj fudV lh,uth iSVªksy iEi ds ikl pqxh Bkdqj }kjk mez djhc 26 o"kZ rFkk yM+dks esa ls njoktk [kksyus okys yM+ds ds }kjk viuk uke lrsUnz dqekj lR;e iq= mes'k flag fuoklh Qjhnuxj Bkdqj}kjk eqjknkckn mez djhc 30 mQZ o"kZ ¼vkVks pkyd½-------------------------- ^^---------------------- gksus ds dkj.k esa gh rhuks xzkgdks ds lkFk dejs esa pyh x;h Fkh vkSj gedks xyr dke djrs gq;s vkius idM+ fy;k xyrh gks x;hA edku esa cus vU; nks dejksa dks pSd fd;k x;k dejksa esa dsoy ?kjsyw lkeku ik;k x;kA ftl dejs esa ;qod o fd;s gq;s dhe dyj ds 06 d.Mkse rFkk csM ds xnns ds uhps ls fcuk iz;ksx ds 09 d.Mkse ik;s x;sA fcuk iz;ksx ds d.Mkse ds jsij dk voyksdu fd;k x;k jSij pkdysVh jax ds gS ftles ckgj ls 6XE BUBBLE vafdr gSA tkek ryk'kh ysus ij /khj falag mijksDr ds iguh isaV dh tsc ls ikp lkS ds l=g uksV] lkS lkS ds nks uksV dqy 8700 :i;s o iksdks dEiuh dk LdkbZ dyj dk LekVZ Qksu ftles eksŒuaŒ 9758475446 rFkk Qksu dk vkbZ,ebvkbZ uEcj 868842056572155@63 cjken gq;sA gsear mijksDr dh ryk'kh esa ikp lkS :i;s ds pkj uksV dqy 2000 :i;s o ,d lSelax dEiuh dk LekVZ Qksu ftldk doj o jax dkyk ftlesa eksckbZy 9458808841 o vkbZ,ebZvkbZ uEcj--------^^ 15. Hence, on these counts, the learned counsel for the applicant submits, that no offence could be culled out as against the present applicant, for the aforesaid offences since he being the customer and thereby he would not be said to be included within the purview of the Act of 1956. 16. Hence, on these counts, the learned counsel for the applicant submits, that no offence could be culled out as against the present applicant, for the aforesaid offences since he being the customer and thereby he would not be said to be included within the purview of the Act of 1956. 16. For the aforesaid purpose, the learned counsel for the applicant has, primarily, made reference to a judgment of Calcutta High Court in the matters of Suresh Babu Vs. State of West Bengal and Another, as reported in 2022 SCC Online Cal 1484, and particularly, he has referred to paras 7, 8, 9, 10, 13, 14 and 15 of the said judgment, which are extracted hereunder: “7. As could be seen from the materials available in the case diary (CD), the petitioner herein is a “customer” and except that nothing has been alleged against him. In this context, it is worthy to be mentioned here that none of the alleged offences against the petitioner herein is attributing in so far as “customer” is concerned. 8. It is evident from the reading of the concerned provisions, that section 3 of the I.T. (P) Act is a section which provides punishment for keeping a brothel or allowing premises to be used as brothel. Section 4 provides for punishment of living on the earnings of the prostitution. Section 5 provides procuring inducing or taking person for the sake of prostitution. Section 7 applies to prostitution in or in the vicinity of public place. Section 18 deals with closure of brothel and eviction of offenders from the premises. Section 120B of I.P.C. in about criminal conspiracy. Accordingly what is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby keeping or allowing a premises as brothel and also when a person is carrying on prostitution in a public place or when a person is found soliciting or seducing another person as defined under the Act. 9. I find no material in the case diary which can suggest that the present petitioner is living on earning of the prostitution. There is no material in the case diary that the accused/petitioner was at the material time living with the sex worker or that he was habitual at the material time in her company. 9. I find no material in the case diary which can suggest that the present petitioner is living on earning of the prostitution. There is no material in the case diary that the accused/petitioner was at the material time living with the sex worker or that he was habitual at the material time in her company. There is nothing to show that the petitioner exercised control, direction or influence over her movement in the way, which can be shown to be aiding or abetting her sex work. Mere visiting the house of sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion. 10. In the present case, it is the specific case of the petitioner that he used to stay abroad and it further appears from the statement of the petitioner as recorded under Section 161 of the Cr.P.C. that on the date of occurrence he was returning from Dubai via Kolkata. He also stated in the 161 statement that on payment to one Rupa, he went to cubicle with sex worker and at that time raid was conducted by the police authorities. 13. So far materials available in the C.D. in respect of present petitioner (accused serial no. 3), section 3, 4, 5, 17 of I.T. (P) Act and section 120B of I.P.C. does not attract. So far as section 7 of the I.T. (P) Act is concerned, it relates to carrying on prostitution by any person and the person with whom such prostitution is carrying on in a premises within a notified area. From the materials in C.D. including sketch map of the place of occurrence it does not disclose that the place, where Raid was conducted is a notified area or in an area as described in section 7(b) where present petitioner as “customer” can be said to carrying on prostitution with accused serial no.4. 14. In view of the aforesaid materials as collected by the Investigating authority during investigation it is clear that the petitioner on the date of occurrence came from Dubai and according to the prosecution story he has paid money to the accused no. 14. In view of the aforesaid materials as collected by the Investigating authority during investigation it is clear that the petitioner on the date of occurrence came from Dubai and according to the prosecution story he has paid money to the accused no. 1 Rupa Das Jaiswal being the alleged owner cum manager of the alleged brothel and according to the prosecution case, he was merely a casual customer who had gone there for sexual enjoyment on payment basis. 17. It would be necessary to observe, that the ratio of a judgment would always be applicable, subject to the facts and circumstances as it involves consideration of in a particular case, because it is always based on the fact and the circumstances, on which a law is applied and not otherwise or the converse. So far as the judgment as rendered by the Hon’ble Calcutta High Court is concerned, the fact was, that the petitioner therein was an NRI businessman, who had visited Calcutta for the business activities in January 2019 and under the pretext, that he was having a backache, he reached the place, which was a family saloon and spa, where, under the garb of the said business activity, the act of prostitution was being carried and consequently, when the said place was raided by the police team, the Investigating Officer had submitted the Chargesheet in relation to the offences under Sections 3, 5, 7, 8 & 18 of the Act of 1956. 18. The paragraphs as extracted above, in fact, para 7 was dealing with the situation as to whether a customer could be attributed to be tried for the offences under Sections 3, 4, 5, 6 and 7 of the Act of 1956? 19. The Calcutta High Court, in its para 8 had observed that providing of a place for carrying out the business of prostitution would be prohibited as per Sections 4 and 5 of the Act of 1956. Particularly, if Section 5 of the said Act is taken into consideration, it uses the words ‘procuring, inducing or taking a person for the sake of prostitution.’ 20. Particularly, if Section 5 of the said Act is taken into consideration, it uses the words ‘procuring, inducing or taking a person for the sake of prostitution.’ 20. Initially, the language used under Section 5 of the Act was, ‘taking for the sake of prostitution’, which was later on substituted so by an Act No. 4 of 1986, where the word ‘person’ was introduced in between it, by way of substitution and what would be more important to observe is, that Section 5 uses the word for the ‘sake of prostitution’. The legislature, when uses the word by virtue of an amendment, a person for the sake of prostitution, as per the opinion of this Court, it would include either male or female, who is taken to a particular place to be engaged in for the purposes of prostitution and that is why, the word ‘sake’ has been used under Section 5 of the said Act, and owing to the aforesaid interpretation, the customer in whose absence there couldn’t be any business or any act of prostitution are not excluded, may it be a male or female. 21. Referring to para 10 of the said judgment, no detailed consideration is required, because the said para is exclusively based on the facts and consideration of the statement under Section 161 of CrPC, which was recorded in the said case, which was being considered before the competent Court at Calcutta. Para 10 itself is not a law or a ratio decidendi, laid down by the Calcutta High Court. 22. The stress made by the learned counsel for the applicant in relation to para 13, 14 and 15 of the said judgment, which are already extracted in preceding paragraph, the motive of consideration would be the observations as made in para 15, because otherwise para 13 and 14 are yet again only a consideration of the facts of the said case and judgment, which may not be a ratio to be considered and applied herein equally. Para 15 becomes relevant wherein it has been observed that the prostitution in itself is not prohibited under the Act of 1956. Para 15 becomes relevant wherein it has been observed that the prostitution in itself is not prohibited under the Act of 1956. But, simultaneously, the Court was conscious to observe, that the customers are virtually the encouragers of prostitution and they are vitally instrumental in exploiting the sex workers for the sake of money taking advantage of their poverty and thus in the absence of the customers, any specific allegation about the conduct of an act of prostitution cannot be ever perceived of to be read together where the customers are the basic encouragers for commission of the offence. The Calcutta High Court, in para 15 of the aforesaid judgment, has observed as under:- 15. Prostitution per se is not prohibited under I.T. (P) Act but it is also equally true that a “customer” may virtually encourages prostitution and may exploit the sex worker for money but in the absence of any specific allegation and materials, I have serious doubt as to how present petitioner (accused no. 3) who is according to prosecution case merely a “customer” can be convicted with the help of materials in C.D. and under the said provisions of law. From the statement of witness, specially statement of accused no. 4 (sexworker) as recorded under section 161 Cr. P.C., there is hardly any scope to say that present petitioner as “customer” had exploited the accused no. 4 or said customer/petitioner encourages anyone for prostitution. 23. With all due reverence at my command, the acquisition of the allegation on the customer in the judgment before the Calcutta High Court was being dealt with on the ground, that a customer’s conviction in the said case couldn’t have been possible, except with the help of the material available in the C.D. and under the said provisions of law. Meaning thereby, the acquittal of the applicant therein, was because there was no surrounding material available to be considered by the prosecution which could lead to a conviction of the applicant therein. Meaning thereby, para 15 if it is logically interpreted is made it leads to that merely because the applicant was a customer, it will not automatically lead to its exoneration. Meaning thereby, para 15 if it is logically interpreted is made it leads to that merely because the applicant was a customer, it will not automatically lead to its exoneration. The only ratio which has been laid down by the Hon’ble Calcutta High Court is that there has had to be surrounding material and evidence available, to establish that he was the only person, who was the promoter of prostitution and it was in the absence of those evidences and in the absence of establishment of the fact by evidence, that the customer has exploited the victim, he cannot be said to be a person, who encourages anyone for prostitution, which may not be the case at hand, in view of the allegations leveled in the FIR, where, when the police team had raided the premises, he was the person who was found in half naked position along with another male, in a room along with the naked female and he was the person, who had opened the door when the premises was raided by the police team. 24. Apart from it, it has been specifically observed in the FIR, that when the premises in question was searched, various used and unused condoms were found in the premises in question. Meaning thereby, the surrounding circumstances and the material which was available to the complainant, who had registered the FIR, it shows that though the applicant’s capacity therein was that of a customer, but he was rather the person, who had been encouraging the activity of prostitution, because of being indulged in the commission of offence, because of the surrounding material, which was available therein in the premises, which was raided by the police team and thus the proposition floated in para 15, in the aforesaid judgment of Suresh Babu (supra), in its strict sense, will not have any applicability as far as the facts of the instant case are concerned. 25. 25. In a nutshell, it could be summarized that a customer, if he is at all to be excluded to be brought within an ambit of the Act of 1956, but his exclusion in commission of offence would not be when he is an encourager of an act of prostitution himself and for that purpose, its the circumstance of each cases explicitly provides ample of evidence of his engagement in encouraging of an act of prostitution, he would be falling within the ambit of the word ‘inducing and inducement’, is specifically for the purposes of prostitution, as provided under Section 5 of the Act of 1956. Thus, this argument of the learned counsel for the applicant, in the context of the Calcutta High Court judgment, in the matters of Suresh Babu (supra), is not applicable herein. 26. The learned counsel for the applicant, further in support of his contention, has referred to various other judgments, to oust a customer from an act of prostitution in order to bring him within the ambit of being trying him for the offences under the Immoral Trafficking (Prevention) Act, 1956. Chronologically, he has referred to the following judgments, which are being dealt with hereunder. 27. The learned counsel for the applicant has referred to a judgment, as it was rendered by the Karnataka High Court in the matters of Pravin Rana Vs. State of Karnataka by Sanjaynagar Police Station, as reported in 2019 SCC Online Kar 3067 and particularly he has relied upon para 1, 2, 3 & 7 of the said judgment, which are extracted hereunder:- “1. This petition is filed under S. 482 of CrPC for quashing of proceedings of CC No. 2023/2017 pending on the file of VIII ACMM Court at Bangalore City, registered against petitioner (Accused 4) for the offence punishable under S. 370 of IPC and Ss. 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘ITP Act’). 2. 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘ITP Act’). 2. Facts in brief which has led to filing of this position are as follows: On the basis of information received that prostitution activities are being carried on at premises bearing No. 172, 1st Main Road, AECS Layout, Sanjayanagar, Bengaluru, on 23-10-2016 at about 1.30 p.m., respondent - Sanjayanagar Police Station along with decoy, panchas and staff members went to the spot and arrested petitioner/accused and other accused persons, who were customers and produced them before the respondent - police by drawing panchanama. On the basis of said information, FIR came to be registered against five (5) accused persons under Ss. 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956, and S. 370 of IPC. 3. It is contended by learned counsel appearing for petitioner that even if the case of prosecution is accepted, it does not satisfy the ingredients of offence urged in FIR against petitioner and there are no allegations against petitioner, insofar as, offence under S. 370 of IPC. 7. Petitioner herein also similarly placed. The only ground on which he has been arraigned as accused in CC No. 2023/2017 is that he was present at the place where alleged prostitution was being carried on at the time of raid was conducted and petitioner was a customer. Thus, allegations against petitioner are similar and identical to the allegations made against accused in Crl.P No. 1959/2017, against whom proceedings have been quashed by Coordinate Bench as noted hereinabove. The allegations made against the petitioner and material collected against petitioner do not show the commission of any of the offences alleged against him in the FIR and proceedings initiated against the petitioner is contrary to the decision in the case of Girishchandra v. State by Lokayuktha Police reported in ILR 2013 Kar 983, and the law laid down in the case of Lalitha Kumari v. Government of U.P. reported in (2014) 2 SCC 1 . For both these reasons, proceedings initiated against petitioner is liable to be quashed. 28. The circumstances under which the said case was being tried against the applicant therein was for almost a similar set of offences, for which the instant C482 Application relates to. For both these reasons, proceedings initiated against petitioner is liable to be quashed. 28. The circumstances under which the said case was being tried against the applicant therein was for almost a similar set of offences, for which the instant C482 Application relates to. But, to deal with the facts of that case, this Court is agonized to observe, that a professional like that of the applicant should understand as to what are the facts of a judgment and, what is the ratio. Facts cannot be permitted to read as to be a substitute of a ratio, to be relied in a proceeding to confuse the issue to be decided by the Court based on law. Reference to para 1, 2, 3 and 7 of the aforesaid judgment, as extracted above, are exclusively the facts involved consideration in the said case and not law. 29. Reverting back to para 7 of the said judgment; it was a case where the petitioner before the Karnataka High Court, had come up with the specific case, that he was not engaged in an act of encouraging prostitution, but rather, he was incidentally present at the place, where the alleged act of prostitution was being carried, when the raid was conducted and he contended that at the most he was the customer. 30. The judgment of the coordinate Bench of the Karnataka High Court, while dealing with the issue while placing the applicant Praveen Rana therein in parlance to the judgment of the coordinate Bench of Karnataka High Court, as rendered in the matters of Crl.P. No. 1959 of 2017, has observed that the petitioner therein, does not show to be involved in commission of the offence as alleged against him and thus the proceedings on that basis, it was quashed. This judgment, in its para 7, was yet again circumscribed by its own facts and circumstances, where the defense was, that though he was, present there but was not found to be engaged in an act of prostitution. Secondly, he was extended the benefit of a similar ratio, as it was laid down in another matter, as referred to hereinabove. This judgment, in its para 7, was yet again circumscribed by its own facts and circumstances, where the defense was, that though he was, present there but was not found to be engaged in an act of prostitution. Secondly, he was extended the benefit of a similar ratio, as it was laid down in another matter, as referred to hereinabove. But, with all due reverence at my command, I am in disagreement with the ratio laid down by the Karnataka High Court, though factually being different, it has not dealt with the matters from the perspective, nor even have researched upon as to whether the presence of an applicant at the place of commission of offence of prostitution where he was at all engaged in commission of offence based upon the evidence and circumstances available on record whether it was in augmenting or encouraging the activity of prostitution or not, which could have brought him to be within the ambit of the provisions contained under Section 5 of the Act of 1956, and as per the principles laid down by the Calcutta High Court in para 15 of the judgment in the matters of Suresh Babu (supra). 31. Even otherwise also, para 7 of the aforesaid judgment is not a dichotomy of an allegation of commission of offence of the applicant of the said case, which has been treated to be having semblance with the judgment as rendered in Crl. Petition No. 1959 of 2017. This Court is of the view that, exemption of a customer, to be brought within an Act of 1956, could only be when the circumstances, evidences, facts and defense taken by the victim establishes, that he was not a person who was actually instrumental in encouraging the act of prostitution and that being so, this Court is of the opinion, that a customer cannot be ousted from the provisions of the Act of 1956, merely because of the fact, as argued by the learned counsel for the applicant, in the light of the provisions contained under the Act of 1956, because an act of prostitution cannot be an isolated engagement of an opposite sex in the commission of an act of prostitution. The presence of a partner of an opposite sex always plays an important role in complete commission of offence and in the absence of an active opposite partner in commission of offence of prostitution. Basically, it will not be possible for this Court to bring any act of prostitution, to be pervaded in the society and hence this Court is of the view, that when under Section 5 of the Act, it uses the word ‘person’ by virtue of an amendment, and it simultaneously uses the word ‘for the sake of prostitution’, it would be inclusive of the customer, for completion of an offence of prostitution. 32. Logically, it would mean that the word ‘sake of prostitution’ would hereby denote to a person, who acts as a customer or a partner to offence, and, who promotes the prostitution, will too be falling to be prosecuted under the Act of 1956. 33. The learned counsel for the applicant has referred to yet another judgment, as rendered by the Andhra Pradesh High Court in the matters of Korada Subrahmanyam Vs. The State of Andhra Pradesh, decided in Criminal Petition No. 6182 of 2022. The learned counsel for the applicant has referred to para Nos. 6, 7 & 8 of the said judgment, which are extracted hereunder:- “6. The learned Judge in Padala Venkata Sai Rama Reddy while referring to the earlier decisions of this Court in Z.Lourdiah Naidu v. State of A.P., 2013 (2) ALD (Cri) 393 = 2014(1) ALT (Cri) 322 (A.P.), Goenka Sajan Kumar v. the State of A.P., 2014(2) ALD (Cri) 264 = 2015(1) ALT (Cri) 85 (A.P.) as also the decision of Hon'ble High Court of Karnataka at Bengaluru in Sri Roopendra Singh v. State of Karnataka held that continuation of criminal proceedings against the petitioner therein, who was present in a brothel house at the time of raid by the Police as a customer, or fastening with any criminal liability in respect of any of the offences for which the charge sheet was filed, would amount to abuse of process of law. The relevant paras in the said decisions may be extracted for ready reference: (i) Paragraph Nos.6 and 7 in Z.Lourdiah Naidu: "6. Section 4 of the Act would be attracted only if a person knowingly lives on the earnings of the prostitution of any other person. The relevant paras in the said decisions may be extracted for ready reference: (i) Paragraph Nos.6 and 7 in Z.Lourdiah Naidu: "6. Section 4 of the Act would be attracted only if a person knowingly lives on the earnings of the prostitution of any other person. The activity carried out in a given premises will amount to prostitution within the meaning of Section 2 of the Act only if sexual abuse by exploitation of the person is done for commercial purpose. 7. Section 4 of the Act does not punish or make the person liable for the acts done by the person who is running the brothel house. This Section does not make the person, who carries on prostitution for her own gain, liable for punishment, so also the person who is running the said premises. This Section is meant to punish those persons who are living on the earnings of the prostitute. The said provision cannot be invoked for prosecuting the persons who visit the said premises. Therefore, the ingredients of Sections 3 and 4 of the Act are not made out. In that view of the matter, continuation of proceedings against the petitioners in C.C.No.337 of 2008 on the file of the learned Special Judicial Magistrate of First Class, Yerramanzil, Hyderabad is nothing but abuse of process of Court." (ii) Paragraph Nos.4 and 5 in Goenka Sajan Kumar: "4. Section 3 of the Act imposes punishment for maintaining a brothel house or allowing premises to be used as a brothel house. Section 4 imposes penalty for living on the earnings of prostitution. Section 5 deals with the procurement, inducement or inducing a person for the sake of prostitution. Section 6 of the Act speaks about detaining a person in the premises where prostitution is carried out. 5. None of these sections speak about punishment to the customer of a brothel house. Admittedly, the petitioner does not fall under the provisions of Sections 3 to 7 of the Act, as the petitioner was not running a brothel house nor did he allow his premises to be used as a brothel house. The Criminal Petition No.312 of 2020, dated 20.1.2021 petitioner is not alleged to be living on the earnings of prostitution. Admittedly, the petitioner does not fall under the provisions of Sections 3 to 7 of the Act, as the petitioner was not running a brothel house nor did he allow his premises to be used as a brothel house. The Criminal Petition No.312 of 2020, dated 20.1.2021 petitioner is not alleged to be living on the earnings of prostitution. It is also not the case of the prosecution that the petitioner was procuring, inducing or in dicing any person for the sake of prostitution nor is it the case of the prosecution that any person was earning on the premises where prostitution is carried out." 7. In Criminal Petition No.2156 of 2022, another learned Judge following the earlier decisions referred to above and the decision in Criminal Petition No.6733 of 2021, dated 29.11.2021 (Padala Venkata Sai Rama Reddy) was pleased to take a similar view in identical facts and circumstances and allowed the criminal petition quashing the offences registered against the petitioner therein. 8. In the present case, as seen from the charge sheet, the petitioner visited the brothel house as a customer and in view of the same, and in the light of the above stated legal position, he is not liable for prosecution for the offences under Sections 3, 4 and 5 of ITP Act. In such view of the matter, the Criminal Petition is allowed and the proceedings against the petitioner in C.C.No.78 of 2020 on the file of the Court of Principal Junior Civil Judge, Mangalagiri are hereby quashed. Miscellaneous applications, pending if any, shall stand closed.” 34. By way of a reiteration, this Court once again feels it apt to observe, that a judgment cannot be read in piecemeal. It has to be logically always to be read with a mindset of a Judge, who was then deciding the matter after considering the fact of the particular case, because it is always the fact of a case, which precede the law. 35. In the instant case of Korada Subrahmanyam(supra), we cannot exclude to read para 3 of the said judgment as per the facts involved therein, where in the case the applicant was found to be present in a ‘brothel’, and there, he was arrested by the police, where he was actually found to be engaged in augmenting the act of prostitution, where sexual intercourse was actually going on when the raid was conducted. The reference to para 6, 7 and 8 of the said judgment, which have been extracted above, has only made reference to yet another earlier judgment of the said Court as reported in 2013 (2) ALD (Cri) 393, Z.Lourdiah Naidu Vs. State of A.P., wherein the Hon’ble Court has observed in the matters of Sri Roopendra Singh Vs. State of Karnataka as decided in Criminal Petition No. 312 of 2020, that the implications of Section 4 of the Act of 1956 would be attracted, only when a person knowingly engages in an act of prostitution and is actually found to be engaged in an activity, which augments the business of prostitution and, which will ultimately amount to be a sexual abuse by exploitation of a person, as it was observed by the Andhra Pradesh High Court in the matters of Z. Lourdiah Naidu (supra). 36. A minor exception has been carved out in the said judgment, and that to yet again, without making any reverence to the implications of Section 5, the Court has observed that fastening of a criminal liability, in respect of an offence upon a person, who was present at the place of commission of an offence of prostitution, and if ultimately his status was found to be as that of a customer, he may not be made liable to be prosecuted, but then, this Court is of the opinion, that this isolated observations which had been made by the Andhra Pradhesh High Court, will not be attracted herein, in the instant case, because the Andhra Pradesh High Court has not dealt with the aspect, as to what would be the impact where a customer, in whose absence there cannot be any act of commissioning of prostitution, which is prohibited by the Act, could be carried on and hence a person, who is instrumental in its augmentation, is liable to be prosecuted for the commission of offence under Sections 3, 4, 5, 6, 7 of the Act of 1956 and particularly, the interpretation in the context as given to para 5 of the said judgment, by this Court in the aforesaid paragraphs. 37. The learned counsel for the applicant has made reference to paras 3, 6, 7, 14, 17, 18, 19 & 23 of yet another judgment, as rendered by the High Court of Meghalaya in the matters of Shri Sunil Kumar Singha Vs. 37. The learned counsel for the applicant has made reference to paras 3, 6, 7, 14, 17, 18, 19 & 23 of yet another judgment, as rendered by the High Court of Meghalaya in the matters of Shri Sunil Kumar Singha Vs. State of Meghalaya and others, as decided in Crl. Petn. No. 7 of 2022 with Crl. Petn. No. 8 of 2022. As far as para 3, 6 & 7 of the said judgment are concerned, it only deals with the facts of the case and not law, because it was dealing with the situation and the circumstances under which the proceedings under Sections 3 and 4 of the Immoral Traffic (Prevention) Act, 1956 was being carried. So far as para 7 of the said judgment is concerned, it was dealing with the judgment of the Karnataka High Court, as rendered in the case of Pravin Rana (supra), which this Court has already considered in the preceding paragraph, hence for the sake of brevity, the same is not being repeated. 38. The learned counsel for the applicant has particularly referred to para 17, 18 & 23 of the said judgment of Shri Sunil Kumar Singha (supra). Para 17, was an argument extended in the said case from the view point, as to whether in accordance with the provisions as contained under Section 3(2)(a) of the Act, merely because of the fact, that the applicant was caught in a room with a girl, can it be said that its occupier too was involved in commission of the offence under the said Act of 1956, for which they can be prosecuted and the premises itself could be treated as to be a brothel? 39. The exception, which has been carved out therein in para 17, which has been referred to by the learned counsel for the applicant was exclusively limited to the extent of dealing with the question, as to what the actual literal meaning of brothel would mean. The Court has observed in the light of the judgment, as reported in 1982 CriLJ 702, Suseela Vs. State, as rendered by the Madras High Court, that merely because of the fact, that a boy and girl are present in a premises, or they are jointly occupying the same, that in itself cannot be construed as to be a brothel. The Court has observed in the light of the judgment, as reported in 1982 CriLJ 702, Suseela Vs. State, as rendered by the Madras High Court, that merely because of the fact, that a boy and girl are present in a premises, or they are jointly occupying the same, that in itself cannot be construed as to be a brothel. In fact, this question was attempted to be clarified by the learned counsel for the applicant by referring to para 17, which is of no relevance in the instant case and, rather it would be an alien argument, which has been extended by the learned counsel for the applicant, which stands outside the purview of the instant C482 Application and facts too as involved in the instant case. 40. The learned counsel for the applicant has referred to para 18 and 19 of the said judgment, which too, was almost on a similar situation where the definition of ‘brothel’, was being considered in the context of a house of the female, which was, therein being treated as to be “brothel”. 41. The learned counsel for the applicant has particularly harped upon in para 23. In fact, para 23 of the said judgment of Sunil Kumar Singha(supra), yet again is not a law, but it is only a conclusion drawn under the given set of facts and circumstances of the case, but once again, the Court has not dealt with the entire issue from the perspective, that though a place where merely because a male and female are found together in a room or a house, it may not be a brothel or it may not be automatically taken as to be that they are engaged in commission of an act of prostitution. But the judgment of the Meghalaya High Court doesn’t deals with the facts and circumstances, as it existed in the said case, as to whether at all the applicant therein, who has been acquitted merely because of the fact, that his presence in the house or a room with a female will not be a ‘brothel’ and his act will not be a ‘prostitution’, but the Court has not dealt with in the context, as to whether under the evidence involved in the said case, the applicant therein was a person who was instrumental in augmenting an act of prostitution, which is a condition precedent to bring a person to be prosecuted under the Act of 1956, as envisaged by the Calcutta High Court’s judgment, which the learned counsel for the applicant has relied, particularly, that as contained in para 15 of the said judgment of Suresh Babu (supra). 42. In order to sum up the arguments, as it has been extended by the learned counsel for the applicant, this Court is of the view, that if the judgment of Kerala High Court itself is taken into consideration, as it was rendered in Criminal MC. No. 1398 of 2013, Mathew Vs. State of Kerala, primarily, it had formulated the question as to whether the customer in a brothel, when the prosecution has proceeded against him criminally whether under the Immoral Traffic (Prevention) Act, 1956, that was the question, which was required to be considered in the said case and the judgment of the Kerala High Court, in its paras 13, 14 and 15 which are extracted hereunder:- “13. Till the year 1987, the words used in the first part of section 7(1) were “‘women or girl who carries on prostitution…..”. The words ‘women or girl’ were replaced with the word ‘person’ with effect from 26-01-1987, indicating that even a man can carry on prostitution. Thus the words ‘person who carries on prostitution’ in section 7(1) of the Act includes the prostitute also. 14. The meaning to be ascribed to the words the “person with whom such prostitution is carried on” is significant for this case. Those words will have to be read in conjunction with the definition of the word prostitution. The term prostitution is defined as sexual exploitation or abuse of persons for commercial purposes. Sexual exploitation cannot be done singularly. 14. The meaning to be ascribed to the words the “person with whom such prostitution is carried on” is significant for this case. Those words will have to be read in conjunction with the definition of the word prostitution. The term prostitution is defined as sexual exploitation or abuse of persons for commercial purposes. Sexual exploitation cannot be done singularly. The person engaged in the act of exploitation is also a person who falls within the term ‘persons with whom such prostitution is carried on’. In other words, the person who exploits or abuses the prostitute is the person with whom the prostitute carries on prostitution. Thus the act of immoral traffic cannot be perpetrated or carried on without a 'customer'. By using the words 'person with whom the prostitution is carried on' in section 7(1) of the Act, I am of the considered view that the legislature has intended the customer also to be brought within the purview of the penal provisions. 15. In this context, the purpose of the statute cannot be ignored. The Act is intended to be a deterrent against and prevent immoral traffic. In the absence of the customer falling within the penal umbrella of the statute, the objects of the enactment can never be achieved. Thus, in my considered opinion, the words ‘person with whom such prostitution is carried on’ as appearing in section 7(1) of the Act will include a ‘customer’.” 43. In the absence of the customer falling within the penal umbrella of the statute, the objects of the enactment can never be achieved. Thus, in my considered opinion, the words ‘person with whom such prostitution is carried on’ as appearing in section 7(1) of the Act will include a ‘customer’.” 43. In the above case, the Court has carved out an exception, that till 1987, the definition given therein under the Act, included a ‘woman and girl’, who carries a prostitution, but due to the subsequent amendment, which was carried on 26.11.1987, when it uses the word ‘person’, that would be logically read in reference to the provisions as contained under sub Section (1) of Section 7 of the Act of 1956, to include an act to be an act of prostitution and accordingly, while giving an interpretation to it, as to whether a customer would be covered by the provisions of the Act or not, this Court is in agreement with the ratio laid down by the Hon’ble Kerala High Court, relied by the applicant, as well as, the ratio laid down in para 14, where the Kerala High Court has dealt, with as to how the word ‘person’ would be actually interpreted, because the word ‘person’ would be carrying an impact of a common gender and the said splitted interpretation of the word ‘person’, as introduced by the amendment of 26.11.1987, will not exclude the person, who is present as a customer, and who is also instrumental in sexual exploitation, which has eventually resulted into a sexual abuse for the purposes of commercial activity and once a sexual act, which is taken as to be a commercial act, the said commercial act, will always have a partner, who would be equally engaged in commission of offence and the word ‘person’ it will not be read in singular here, but rather it would be read in plural. Hence the person, who exploits the personal crises of a female, for exploiting her sexually and being a person actively involved in a common act by the two persons, he would be brought within the ambit of a ‘person’, as introduced by amendment carried on 26.11.1987, and thus a person engaged in an act of exploitation, is also a person within the term of ‘person’, as amended in the Act, and the person who exploits or abuses the prostitute is and would be a person with whom the act of prostitution is being carried to be a ‘person’, under the definition of the Act, who augments the same and rather encourages the activity of prostitution and would be falling within the domain of Immoral Traffic (Prevention) Act, irrespective of the fact, that his status being that of a customer, cannot be splitted to be read in isolation to the act, in which he is involved and cannot be excluded from the domain of person, the word used in the Act. 44. The ultimate analysis, which has been done by the Kerala High Court in para 15, is with regard to the implications of Section 7(1) of the Act, wherein the Court has observed that the person, who is involved in such prostitution being carried, since being a ‘person’, which is literally a common gender appearing under Section 11 of the Act, would be including a customer too and he cannot be excluded from the ambit under the Act of 1956. 45. Almost a similar view has been expressed by the High Court of Gujarat, in the matters of Vinod Vs. State of Gujarat and Others, as reported in 2017 4GLR 2804, wherein the coordinate Bench of the Gujarat High Court, in its para 25 to 28 has almost dealt with an akin circumstances, as it has been dealt with initially by the Calcutta High Court, then by the Kerala High Court as referred to hereinabove, and ultimately by the Gujarat High Court too, wherein it has been observed in para 25, that it is judicially impossible to make out a contrary view that a customer at a brothel, is not covered under the provisions contained under Section 370 of IPC, because if the customer at a brothel is a person, who is supposed to receive the victim, he cannot be kept outside the purview of Section 370 of IPC. Para 25 to 28 of the said judgment are extracted hereunder:- “25. I find it extremely difficult to take the view that a customer at a brothel is not covered within the provision of Section 370 of the Indian Penal Code. A customer at a brothel could be said to receive the victim. I see no good reason why the customer should be kept out of Section 370 of the Indian Penal Code. 26. However, I should sound a note of caution at this stage. I am dealing with a very important issue and this judgment may have its own implication. At this stage, my attention is drawn by Mr. Nanavati, the learned counsel appearing for the applicant, to a clarification issued by Justice Verma Commission on the intent of Section 370 of the Indian Penal Code. 27. The clarification was sought in the following words: "Dear Ms. Seshu The Committee, in its report of January 23, 2013, proposed certain amendments to Section 370, IPC, to introduce a definition of the offence of 'trafficking' into the IPC and the punishment thereof. The Committee also notes that the Ministry of Law and Justice, Government of India, by way of the Criminal Law (Amendment) Ordinance, 2013 ('Ordinance'), dated February 3, 2013, has amended Section 370 of the IPC in terms of the Committee's recommendations. The Committee, however, notes your representation on behalf of the National Network of Sex Workers to the effect that the Section 370, IPC, after being amended by the Ordinance, could be misused by police and other governmental authorities to harass (i) sex workers who engage in prostitution of their own volition, and not pursuant to inducement, force or coercion, as the amended Section 370 provides, and (ii) the clients of such sex workers, by bringing the act of gratification for a sex worker's services under the scope of the amended Section 370. The members of the Committee wish to clarify that the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients. The Committee hopes that law enforcement agencies will enforce the amended Section 370, IPC, in letter and in spirit. Yours sincerely Abhishek Tewari Advocate Counsel to the Committee" The clarification dated 8th February 2013 reads as under: "This is to express our concern at the ambiguous manner in which the term "prostitution " has been used in Section 370 IPC of the Verma Committee Report. In this section, which deals with the offence of Trafficking of Persons, the term "exploitation" includes "prostitution" itself. This in essence means that "prostitution" will now be interpreted as exploitation. This problematic formulation has now been incorporated into the recently passed Ordinance. Section 370 IPC criminalizes people in sex work since it does not differentiate between "coercive prostitution" and prostitution; nor does it talk about the "exploitation of prostitution". Section 370 IPC was introduced to criminalize trafficking in persons and by and large uses the language of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (2000). However, comparing the language under both reveals a highly significant difference in the definition of "exploitation". - While The UN Protocol which India ratified in 2011 defines "exploitation: as: "Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;...": - Under Section 370 IPC "exploitation" is defined as: "The expression "exploitation" shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs." This significant difference potentially criminalizes the practices around sex work. By introducing the language of prostitution itself as exploitation, the amendment endangers sex workers instead of protecting them from sexual exploitation. By introducing the language of prostitution itself as exploitation, the amendment endangers sex workers instead of protecting them from sexual exploitation. The learned members of the Verma Committee will concur that legislative framework that criminalizes prostitution as exploitation, drives the practice underground and renders the already vulnerable sex worker more vulnerable to violence, exposure to HIV and deepens the lack of legal remedy to redress violence. We also draw your attention to the decision of the Hon'ble Supreme Court (Cr Ap. 135/2010, 14 February 2011), where the right to dignity of women in prostitution was upheld. The formulation in the Ordinance is a setback to sex workers who are fighting for legal and societal recognition of their fundamental rights to dignity and pursuit of a livelihood. Instead, criminalization, which is the fallout of the Ordinance, will create conditions for increased abuse of sex workers, especially by the police and others in positions of power and authority. We request you to clarify that your intention was not to criminalize the lives of sex-workers but rather to criminalize only those who 'exploit the prostitution of others' i.e. traffickers in persons. We hope that this crucial clarification by the Committee will aid Parliament in bringing about the necessary changes in the provision so that the vulnerable sex worker is protected and not made the subject of criminal sanctions." 28. Thus, it appears that Section 370 of the Indian Penal Code will have no application in a case wherein the sex workers engaged in prostitution of their own volition, and not pursuant to any inducement, force or coercion. This would be a question of fact and a subject matter of investigation. It is for the Investigating Officer to consider, whether the sex workers had engaged themselves in prostitution of their own volition or they were victims of sexual exploitation as explained by Section 370 of the Indian Penal Code.” 46. Ultimately, in para 28, after making an elaborate deliberation up on the impact of Section 370 of IPC, as it has been argued by the learned counsel for the applicant in the instant case, the ultimate analysis made by the Gujarat High Court was, that Section 370 of IPC, will have no application in the cases where sex-workers are engaged in prostitution in their own volition with their customers. While where there is an inducement or force or coercion on a female, Section 370 of IPC would be said to be attracted, and in order to carve out an exception about the lack of willingness or lack of coercion, that has to be decided independently by the trial Court and C482 proceedings would not be available to decide the aforesaid factual aspects, as to whether the customer, who was found present in the place of occurrence of an offence, who was himself found to be in an awkward situation, where the surrounding evidences, as found by the police team itself speaks about the incident. 47. All the surrounding circumstances and the level of engagement of the applicant are the matters which are to be decided by the trial Court after appreciating evidence, that cannot be considered in 482 jurisdiction for quashing of the proceedings. Hence, I do not find any merit in the instant C482 Application, the same is accordingly, dismissed.